On appeal from the Appellate Division of the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Heher, J.
We are concerned here with the adverse action taken by the Passaic County Court on defendant's motion, before judgment, for leave to withdraw his pleas of " nolo contendere " to two indictments severally charging conspiracy to commit an abortion.
There were three indictments in all returned by the grand jury, alleging separate and distinct conspiracies by defendant and two others to commit abortions upon different women, all in the month of August 1951.
On December 6, 1951 defendant entered pleas of "not guilty" to all three indictments, and the later trial of one of the indictments resulted in a verdict of "guilty" on April 2, 1952. On April 22 ensuing, before sentence thereon, defendant was given leave to withdraw his pleas of not guilty and to plead nolo contendere to the remaining indictments; and pleas were entered accordingly. On the day finally fixed for sentence, May 16 following, when refused assurances that he would be sentenced on all three indictments as for one offense, defendant asked for permission to withdraw his pleas of nolo contendere and to restore his pleas of not guilty to the two indictments now in question. The motion was denied, and thereupon he was sentenced on the three indictments, severally, to imprisonment for a minimum term of two years and a maximum term of three years, to run consecutively, and to pay a fine of $1,000.
The judgments entered on the pleas of nolo contendere were affirmed by the Appellate Division (23 N.J. Super. 516 (1952)); and defendant thereupon appealed to this court.
The State moved to dismiss the appeal as not allowable of right under Article VI, Section V, paragraph 1 of the State Constitution of 1947 and the complementary Rule 1:2-1 of this court, and the determination of that question was reserved until the final argument of the cause.
The Constitution provides, paragraph 1(a), for appeals of right in causes determined by the Appellate Division of the Superior Court "involving a question arising under the Constitution of the United States or this State." It is insisted that in the course taken here "the doctrine of fair play was violated," and defendant "was denied a basic and fundamental constitutional right and was not accorded due process of law as guaranteed to him by both federal and state constitutions"; also, that defendant was "deceived into" tendering the pleas of nolo contendere and thereby "waiving" the "public trial by jury" secured to all accused of crime by Article I, paragraph 10 of the State Constitution, and there was an arbitrary refusal to inquire into "what actually
occurred before sentence to impel the defendant" to move for leave to withdraw the pleas.
An appeal is maintainable as of right under the particular clause of the Constitution only where the record reveals a substantial and not a merely colorable question arising under the Federal or State Constitution that has not been the subject of a conclusive judicial determination. It is sufficient if there be a real and substantial controversy as to whether there has been full recognition of a right, privilege, or immunity granted by the Constitution, Federal or State, to the accused in a criminal case. The assertion of a denial of due process will sustain the appeal unless the claim is palpably insubstantial, i.e., plainly and unmistakably devoid of merit.
Although we find that defendant has not been deprived of a constitutional right, the contention of a denial of the basic right of trial by jury is in the circumstances sufficiently arguable to sustain the appeal as ...